road sign What can make a judge frown upon receiving a request for attorneys' fees?

What can make a judge frown upon receiving a request for attorneys’ fees?

A fee award, cut in half.

You may have done a spit-take when you read this story, about a judge in Texas who granted an award of attorneys’ fees, but halved the awards in two instances.

As the Texas Monthly reports:

“[David] Harper and his fellow lawyers only got half of what they wanted from [U.S. District Judge Jane] Boyle in fees. She cut their $1.2 million request down $600,000 in a recent order in Spear Marketing Inc. v BancorpSouth Bank.”

Discretion being the better part of valor, the attorney himself complained hardly at all, noting that judges “have broad discretion in making attorney fee determinations.”

Maybe it was the $600 an hour being claimed that set the judge off. Or, who knows, there could be many other things that occurred—or didn’t occur—in the lawsuit that informed her decision.

Time and money, the lawyer's calculus. justice scales clock time money lawyer attorney fees

Time and money, the lawyer’s calculus.

In any case, the judge found that the fees were “unreasonably inflated.” Meaning, I suppose, that the more proper course is to reasonably inflate them.

Whatever led to her decision, it had to be a rude wake-up call to the lawyers, who, for planning purposes, probably had certain million-dollar expectations. Who doesn’t like predictable outcomes, after all?

As you dear readers are pretty discreet yourselves, you likely will not reply to my own query to you: Have you been in a fee-award situation in which the judge made such a drastic *gulp* adjustment? Or, put more charitably, what are your best practices for submitting an attorneys’ fee affidavit that garners the judge’s support?

Come to think of it, that could make a terrific magazine article, one that folks would rip out and save.

Write to me at arizona.attorney@azbar.org.

basketball denied tumblr_mucwilVVxM1rc9kago1_400 Win your case. Check. Persuade judge you deserve a fee award. Check. Take the shot, and ...

Win your case. Check. Persuade judge you deserve a fee award. Check. Take the shot, and …

In the September issue of Arizona Attorney Magazine, we cover facial hair on witnesses. It's not just for hipsters, y'know.

In the September issue of Arizona Attorney Magazine, we cover facial hair on witnesses. It’s not just for hipsters, y’know.

Short and sweet, just as a Change of Venue Friday should be.

As we were putting together our September issue of Arizona Attorney Magazine, it occurred to me that our cover story could be a great candidate for a Vine video.

Don’t know Vine? Well, as Monsieur Wikipedia puts it so well:

“Vine is a short-form video sharing service where users can share six-second-long looping video clips. The service was founded in June 2012, and microblogging website Twitter acquired it in October 2012, just before its official launch. Users’ videos are published through Vine’s social network and can be shared on other services such as Facebook and Twitter. Vine’s app can also be used to browse through videos posted by other users, along with groups of videos by theme, and trending, or popular, videos.”

Anyhoo, our cover story examines the views people have about facial hair on witnesses. Who knew there was detailed research on the topic?

Along with sharing that research, we share great photos that could be illustrate the authors’ points. How else can a legal magazine find a way to feature Brad Pitt, Ashton Kutcher, David Beckham, and Adolph Hitler—all in the same story?

Vine logo v2Anyway, you can watch the Vine here. (C’mon, it’s 6 seconds! Click already!)

And yes, I’ll use a tripod next time.

The best way to view Vines is on your phone through the app. And once you’re there, feel free to follow me. Who knows what we’ll post next.

Have a great—and video-worthy—weekend.

JAGC tour of superior and municipal courts, May 8, 2014.

JAGC tour of superior and municipal courts, May 8, 2014.

This morning, I am pleased to share a news story that was sent my way by attorney Debbie Weecks. It involves a visit by members of a Judge Advocate General Corps to a civilian court.

If you have law-related news you’d like to share, send it to me at arizona.attorney@azbar.org.

Here’s Debbie:

Our Luke AFB’s JAGC Corps broke with its quarterly Friday classroom from its own court setting and tradition this week. The JAGC instead enjoyed a local field day morning with a tour of the courts on Thursday, May 8. The group kicked off at Surprise Municipal Court at 7:45 a.m., where the Honorable Presiding Judge Louis Frank Dominguez gave a formidable overview of the municipal court system. Judicial Administrative Supervisor Lynn Mikus assisted in creating an instructional handout.

Next, the JAGC was greeted at Superior Court by the Honorable Presiding Judge Eilleen Willett for an overview of operations and court departments. Judge Willett was kind enough to lend her clerk out for the balance of the tour, so the members enjoyed the company and some insights courtesy of clerk John Charles Laws (a 3L at Summit Law). Thanks go out to all four NW Superior Court judges for spending time greeting and on Q&A (Judge Willett, and also Judge Jose Padilla, Judge Michael Kemp, and Commissioner Jacki Ireland), and to all their staff who pre-arranged and facilitated the tour.

The Maricopa County Sheriff’s Office graciously provided its escort, which gave the JAGC the opportunity during a snack break between courtrooms to learn about courtroom and courthouse security from Deputy Tony Jacobs. (A thanks is due to the Surprise location Paradise Bakery’s manager Cheryl for the cookies!)

The Self Service Center is an important service member resource when pro per, so the brief instructional by SSC clerks Marta and David was very useful!

Farther down the hallway, the JAGC was greeted by a prior JAGC officer, now Justice of the Peace, Gerald Williams. The four hour-plus tour ended with the JAGC members observing brief proceedings and interacting with North Valley J.P. Judge Williams and Hassayampa J.P. Judge Chris Mueller. With Judge Williams’ background prior to civilian life, the JAGC members were provided a comparative analysis of how certain matters are treated in the two court systems, including prepared handouts and thorough explanations on some more subtle criminal charge matters. Judge Mueller invited everyone to observe an interpreter in-custody plea bargain.

Overall, a great day for all involved!

No U Turn: The tried-and-true law practice techniques are not up to 2014's challenges.

The tried-and-true law practice techniques are not up to 2014’s challenges.

Last week, I mentioned NextLaw, our effort at Arizona Attorney Magazine to explore innovations in the legal profession.

The focus of that 2014 coverage will range among different niches of law practice. To help you understand what we’re looking for, I share here my editor’s column from the December issue.

I would appreciate it greatly if you would share this (and/or reblog it) with those who might have a great and innovative story to tell about their law firm, law practice or courthouse. Here’s the column:

What’s next? is something we all wonder. Here at a law magazine, that’s how we describe our job.

You may catch me talking quite a bit about the future of law in the coming year. We’re very interested (and pretty invested) in the topic. And as we considered the way forward in a profession as complex as the law, we realized we had to break it down—way down.

That is why we will cover the topic category by category next year. After all, what is going to transform large firm practice is not the same thing that will make law school education a compelling draw once again. Sole and small practitioners have their own challenges, as do our courts.

That’s why we’re engaged in the NextLaw Project. In it, we want to help portray the best practices available in those (and perhaps other) categories.

How could you, your law office or court get involved? I’m glad you asked.

Let's try forward (image courtesy Brooklyn Museum)

Let’s try forward (image courtesy Brooklyn Museum)

It’s possible that you’re aware of a remarkable tool or strategy that has made your work more competitive. Perhaps you’re developing a killer practice area, or your small law practice is suddenly benefiting from a resource—human or otherwise—that you hadn’t anticipated. Or maybe you know about your local courthouse that has made service to all its constituents better through initiative and imagination.

So we’re interested in your stories, which we’ve broadly grouped into the following categories:

  • The Emerging Law Firm
  • The Emerging Solo Practitioner
  • The Emerging Law School
  • The Emerging Courthouse

Why do I say “emerging”? Because we all feel we’re peering out of a dark recession, not sure if the light we see is sunrise or sunset. If experience is any guide, those who deem it sunrise will have some compelling stories to tell. Write to me at arizona.attorney@azbar.org.

Disrobed cover by Fred BlockThis past month, I wrote about a great new book—and a terrific lunch with judges that introduced me to it.

Below, I share my column from a recent Arizona Attorney Magazine. I encourage you to enjoy Judge Fred Block’s new book, and to dig into some Chinese food. Here’s the column:

Candor and courts go together like professional and conduct.

That’s true from the attorney’s side, where we understand that statements uttered to judges must be true and accurate.

But the return flow of information from judges may not always be quite so candid.

Before anyone yells “Contempt,” understand I’m not viewing candor’s opposite as dishonesty. Instead, it’s guardedness and caution—characteristics that describe many judges.

Judges have good reason to hesitate before speaking about courts and the justice system. Nonetheless, most people appreciate the occasional glimpses they offer into a system often shrouded in mystery.

And that’s why I’m glad I accepted an April lunch date with two judges.

The first was the wonderful Judge Bob Gottsfield, of the Superior Court for Maricopa County. Accompanying him was a federal district judge from New York, Fred Block. Judge Block was presiding at a trial at the federal courthouse in Phoenix.

We met at Sing High Chop Suey House—a first for me. What brought us together was a conversation about the legal system—and a book that Judge Block had penned.

Sing High Chop Suey HouseAs I tucked into my white-meat chicken chow mein (a house specialty), I listened with pleasure to the law practice stories Judge Block told. He avoided commentary about his book, politely preferring to have a conversation rather than a press junket.

So impressed was I by the chat and by the judge that I ordered the book from Amazon the next day. And I urge you to do the same.

Disrobed: An Inside Look at the Life and Work of a Federal Trial Judge is that rarest of animals: a candid book written by a sitting judge. His story—from a solo law practice to an Article III Judge—makes for enjoyable reading. And the cases he analyzes range from front-page fodder to colorful New York. Scanning the index gives an education: “Bondi, Richard ‘The Lump,’” “Madoff, Bernie,” “Casso, Anthony ‘Gaspipe.’”

Judge Frederic Block

Judge Frederic Block

In between bites, the judge explained that too few people understand anything about the justice system, let alone what a district judge does. He hoped his book would go some distance in educating the public.

I haven’t finished the book, but what comes through is voice with a capital V. As I prepare for May, when I’ll be writing a lawyer profile, I will devour and learn from Disrobeda masterful rendition of a profession, a time, a man and his many chapters.

Plus, I can’t wait to get to “Gravano, Salvatore ‘Sammy the Bull,’” and “Simpson, O.J.”

AZ Supreme Court logoI began an earlier draft of this blog post with the encouraging message: We all should go to judicial investitures. That followed on the heels of two great judge swearings-in—for Court of Appeals Judges Randall Howe and Sam Thumma. For my time and money, there may be no events that provide more insight into what makes judges tick than those events. And I believe that is true for all attendees, whether they are a lawyer or not.

But then I read a news story this week that reminded me it will take more than a heartfelt gathering to remind Arizonans that we have a terrific judiciary (perhaps the finest in the country). Being cynical and all, I’m not convinced we voters are up to the task of understanding and preserving what we’ve got. But I’m hoping I can be proven wrong.

The news story was penned by longtime reporter Howard Fischer, of Capitol Media Services, and it’s titled “Groups Campaign To Oust Supreme Court Judge.”

Right off the bat, let me assure you I’m not urging a vote one way or another on the Justice’s retention. That is between you and whatever data you have available. This post is about the data.

Anyway, as Howie describes it:

“A loosely organized effort to oust a state Supreme Court justice is forcing him to consider an unprecedented campaign to keep his post. … The anger is focused on [Justice John] Pelander because the Supreme Court earlier this year ruled that Proposition 121 can be on the ballot. That measure, if approved, would amend the state Constitution to create an open primary system where all candidates run against each other regardless of party affiliation, with the top two advancing to the general election.”

Hon. John Pelander

Hon. John Pelander

Again, you should vote in the retention election however you’d like. But this whole dustup is about … Prop 121?

Really? REALLY?

For a treatment of the subject that is far more compelling and eloquent than my two-word screed, you should read Chief Justice Rebecca White Berch’s commentary in the Arizona Republic from this past Monday. She also is careful not to urge any particular vote, but she does point us all to some sources of actual data that might inform our ballot choice: The Arizona Commission on Judicial Performance Review, and the Arizona General Election Guide, which is mailed to each registered voter.

As always, the Chief is judicious (part of the job title, I think). But the op-ed does reveal some raised hackles:

“[U]nfortunately, in this age of social media, blogs and e-mail, anyone can post anything concerning a judge without regard to accuracy. Judges may be unfairly portrayed or information about rulings may be misrepresented by people who have an agenda or have simply misunderstood an opinion.”

That takes us back to Howie’s article, which you can read here.

So let’s examine that “Top 2” primary issue, which is ostensibly the sole source of upset against a Supreme Court Justice. You may recall that it was just back on September 6 that the Court ruled that the item could be on the ballot.

Chief Justice Rebecca White Berch

Chief Justice Rebecca White Berch

I would urge the following for anyone “on the fence” due to this ruling: As the Chief says, review the data at the website of the Arizona Commission on Judicial Performance Review, and read your own voter pamphlet.

And then, go the extra step: Read the ruling itself.

I’m confident that my lawyer–readers will not moan about having to read a 6-page ruling. But if you have non-lawyer colleagues who ask about this issue, urge them to read it, too.

I can suggest that for one big reason: It’s well written (by Justice Bales, the order’s author), which means it is accessible to many, not merely to lawyers.

I also can suggest it because reading the actual ruling will remind us all that the Court (and Justice Pelander) did not affirm or deny the merit of Prop 121; it handled the election question—judiciously—as it does with countless other ballot-measure cases, year after year.

As a voter service, I’ve posted the ruling here. But because I have no interest in creating a firestorm of partisan claims, I’ve also posted the appellant and appellee briefs. I suppose if you want the full picture, you may want to read those too. But do start with that ruling.

That’s in the short term. But in the long term, one wonders what kind of Pandora’s box has been opened. We need only look to Texas, or Iowa, or numerous other states to see the insertion of political pressure into judicial retention elections. In those places, justices may sit stonily and ethically silent amid an onslaught of public critique. But the result may be the ouster of good people, along with a further coarsening of the discourse.

Many, many people in Arizona (including a majority of the voting public) support Arizona’s current system of merit selection for certain judges and justices. But even if that system is retained going forward, how will it be altered if groups—“loosely organized” or not—mobilize to transform retention elections into a shouting match? How many people will be interested in the job of judge when the quality of their work is assessed not on the swath of legal output that fills volumes like sea foam covers a beach? Instead, it could be upended by a single, particular ruling in which you’ve joined, a ruling that grabs the popular imagination for misunderstood reasons—a single seashell on a vast coral reef.

Arizona, at a turning point.

Posted as reference to my 10/25/12 blog post here.

SUPREME COURT OF ARIZONA

SAVE OUR VOTE, OPPOSING C-03-2012, an unincorporated Arizona political committee, SAFEGUARD ARIZONA’S FUTURE, an unincorporated Arizona political committee, and LISA GRAY, a qualified elector and taxpayer of the State of Arizona, Plaintiffs/Appellants,

v.

KEN BENNETT, in his official capacity as Secretary of State of the State of Arizona, Defendant, and OPEN GOVERNMENT COMMITTEE SUPPORTING C-03-2012, an unincorporated Arizona political committee, Real Party in Interest.

Arizona Supreme Court

No. CV-12-0301-AP/EL

Maricopa County Superior Court

No. CV2012-013094

DECISION ORDER

FILED 09/06/2012

¶1 The Court, by a panel consisting of Chief Justice Berch, Vice Chief Justice Bales, and Justice Pelander, has considered the briefs of the parties and the record in this accelerated election appeal. After consideration, the Court rules as follows:

¶2 This appeal arises from a challenge by Plaintiffs/Appellants “Save Our Vote, Opposing C-03-2012,” “Safeguard Arizona’s Future,” and Lisa Gray (collectively “SOV”) to petition circulator affidavits on certain initiative petition sheets circulated by Real Party in Interest “Open Government Committee Supporting C-03-2012” (the “Committee”). The initiative proposes to amend Article 7 of Arizona’s Constitution to create a single open “top two” primary election followed by a general election between the two candidates who receive the highest vote totals for each office; if adopted by the electors, that system would replace Arizona’s current partisan primary and general elections in January 2014.

¶3 Following the Secretary of State’s initial culling of initiative petition sheets pursuant to A.R.S. § 19-121.01, SOV discovered possible defects in some circulator affidavits. It filed this action on August 24, 2012, and requested an expedited hearing pursuant to A.R.S. § 19-122(C), which provides that such actions be “heard and decided by the court as soon as possible.” The matter was set for a four-hour hearing on August 30 before Judge John Rea in Maricopa County Superior Court. The printing deadline to place initiative measures on the general election ballot was August 31, 2012; the deadline for removing items from the ballot is September 7, 2012.

¶4 At the hearing, without objection, the trial court allocated two hours to SOV and two hours to the Committee. After calling three witnesses and introducing some of the petitions it had hoped to have admitted into evidence, SOV rested ten minutes short of its two hours, without then proffering additional exhibits for admission. The Committee rested well short of its two hours. When SOV asked if it could “admit some more exhibits” at that point, the trial court responded that “exhibits which are rebuttal to the defense case” would be permissible, but “something new” that is “beyond the scope of rebuttal” would not. SOV neither identified what additional exhibits it might seek to introduce nor made an offer or proof. SOV then stated there was no need for rebuttal and the parties made closing arguments.

¶5 The next day, August 31, the trial court ruled that although SOV had proved 2,056 signatures should be removed for fatally flawed affidavits, that number was insufficient to disqualify the measure in light of the court’s ruling in the companion case, Open Government Committee v. Purcell, CV 2012-013089. In that matter, the Committee had successfully rehabilitated 577 signatures the Maricopa County Recorder had struck as invalid in its certification of the random sample pursuant to A.R.S. § 19-121.02. When the total number of valid signatures was recalculated, the ruling in Purcell resulted in the Committee having 6,372 more valid signatures than required; and even after deducting the 2,056 signatures invalidated in this case, the Committee had 4,316 more valid signatures than required. The trial court therefore dismissed SOV’s complaint with prejudice in a signed minute entry.

¶6 On appeal, SOV argues the trial court abused its discretion by “requiring [it] to introduce signature sheets individually by circulator,” rather than admitting, en masse, four boxes containing some 6,000 signature sheets and by allowing SOV only two hours in which to present its evidence “and not granting [its] request for additional time.” SOV also argues that the trial court erred by dismissing the complaint while the companion case was subject to appeal.

¶7 We affirm the trial court’s rulings. The court did not require SOV to introduce signature sheets individually by circulator. When the Committee declined to stipulate that the contents of the four boxes were true and correct copies of the actual petitions, and SOV’s witness testified that the documents were “not necessarily in the same form as how [the Secretary of State’s office] provided them,” the trial court indicated that SOV could lay further foundation, at which point a determination on admissibility could be made. The trial court did not abuse its discretion in refusing to admit the boxes when first offered. Although SOV laid additional foundation through its next witness, and successfully moved to admit certain signature sheets, it did not again move to admit the four boxes. When SOV asked during its case-in-chief if there was a simpler or faster way to proceed, the trial court appropriately responded that each party should determine how to prove its case. The trial court did not unduly limit the manner in which evidence was presented.

¶8 Nor did the trial court abuse its discretion in limiting the time for presenting evidence. SOV did not object to the court’s allocating four hours for the hearing or dividing the time equally, perhaps because experienced election counsel on each side understood that the printing schedule required the court to issue a ruling the next day. During the hearing itself, when SOV requested additional time to present more evidence, it neither made an offer of proof regarding the proposed evidence nor argued that adhering to the previously established schedule would be unfairly prejudicial. The trial court did not deny SOV due process under the circumstances of this expedited election litigation.

¶9 Finally, the trial court did not err in dismissing SOV’s complaint while the companion case was subject to appeal. This issue is moot because the defendants in that case chose not to appeal and, in any event, SOV did not ask the trial court to defer entering judgment pending any appeal of the companion case.

CONCLUSION

¶10 SOV has not shown that the trial court abused its discretion with respect to any evidentiary rulings or in adhering to the previously established hearing schedule; nor did the trial court err in dismissing SOV’s complaint. Because the issues raised by the Committee on cross-appeal will not affect our disposition of this case, we do not address them. We affirm the decision of the trial court denying the injunctive relief requested by SOV and dismissing its amended complaint with prejudice.

DATED this ____________ day of September, 2012.

Scott Bales

Vice Chief Justice

TO:

Michael T. Liburdi

Joshua Alan Kredit

Michele L. Forney

Thomas M. Collins

Kimberly A. Demarchi

William G. Voit

Hon. John Christian Rea

Michael K. Jeanes

jrs

Related Documents:

Top 2 Primary CV120301 Decision Order (same as above, but in PDF)

Order filed in Trial Court Exhibit A

Appellants’ Opening Brief

Opening Brief of Real Party in Interest Open Government Committee

CV120301 Appellants’ Response Brief

CV120301 Response Brief Open Govt

Arizona Chief Justice Rebecca White Berch has issued a call for nominees for the judicial system’s highest awards. Nominations close August 24.

According to the Court, it “will present one award to each of the following groups: Probation, Limited Jurisdiction Courts, General Jurisdiction Courts, Individual Achievement in Accomplishing the 2010-2015 Vision, and one At-Large Award for outstanding contributions in meeting the goals of Justice 2020 A Vision for the Future of the Arizona Judicial Branch 2010-2015, as outlined in the Judiciary’s plan for continuing to improve public trust and confidence in the Arizona court system.”

More from the Chief Justice is here. Click here for criteria, and here for the nomination form.

And here is the Court’s strategic plan titled Justice 2020.

Chief Justice Rebecca White Berch

Richard Zorza

This past week, access-to-justice advocate Richard Zorza wrote a brief but compelling blog post. In it, he pointed readers to content regarding how courts may attain “high performance.” That content was found in an article by some great authors, including Minnesota state court Judge Kevin Burke.

(I wrote before about Richard Zorza here.)

As Zorza opened:

“One approach the National Center [for State Courts] has been taking to improve the functioning of courts nationally is to focus on overall strategies for achieving “high performance.”  There are seven such strategies, highlighted in an article by Judge Kevin Burke, Brian Ostrom and Roger Hansen.”

Zorza lists the seven strategies, a few of which immediately caught my eye:

  • Establish the Court’s Cultural Landscape
  • Abandon the Myth of the Lone Ranger

See the full list here.

Zorza kindly provides a PDF of the complete article here (which otherwise is behind a members-only wall).

And more on the National Association for Court Management is here.

Can you identify your own local or state court in these descriptions? Or do they fall short in one or more ways?

On Friday, Maricopa County dedicated its new court tower, officially taking ownership of the 16-story structure at Second Avenue and Madison Street in downtown Phoenix.

Though operations will not commence in the building until Arizona Centennial Day in February 2012, county staff and supervisors decided to formally mark the delivery of the certificate of occupancy.

As workers made tweaks and final adjustments, dignitaries gathered Friday morning in the building’s lobby for brief remarks by those who played a large part in the building’s completion.

“On time and under budget” was repeated by numerous speakers, clearly pleased to be able to report the fact.

Supervisor Don Stapley said that the county had saved $198 million in financing costs by building when it did—rather than delaying, as detractors had recommended. The building is now debt-free, he said.

“This building is a testament to the courage and tenacity of the board and staff in the face of their challengers,” he said. “The citizens of the county for the next 100 years will be the winners.”

Supervisor Fulton Brock said that the building’s inscription—“The first duty of society is justice”—is what the board and the county stand for.

“This building is the envy of every judicial district in the nation,” Supervisor Mary Rose Wilcox said. “When Maricopa County sets its mind to something, there’s no stopping it.”

Also speaking was County Manager David Smith, who thanked all of the contractors and vendors.

“Today we celebrate the success of a great team in what will be a 100-year building.”

Smith described some of the many unique elements of the new structure, such as separate waiting areas for victims and defendants, holding cells that will accommodate more than 1,000 inmates, and a variety of courtroom designs made to address varying needs. Smith also noted that there were more than 2 million work hours on the project with no lost-time accidents.

Assistant County Manager for Public Works Kenny Harris praised the three construction and design teams that led the operation: HDR, Parsons and Arcadis.

Event attendees stood atop one of the building’s featured elements: a terrazzo tile floor depicting the flow of the Salt River.

Representing the court (for Presiding Judge Norm Davis, who was unable to attend the Veterans Day event) was Judge Eddward Ballinger. He said, “This project represents an example of the prudent and wise leadership by supervisors and county staff. Of all the bickering we see today, this is an example of efficient bipartisanship.”

Here is another story on the opening. And the Court Tower has its own web page here.

More photos are below. And more are available on the Arizona Attorney Magazine Facebook page.

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